William McCausland v Surfing Hardware International Holdings Pty Ltd ACN 090 252 752

Supreme Court of NSW|2013-07-09|Before: Slattery J

ernational Holdings Pty Ltd, SHI Holdings Pty Limited, Surf Hardware International Pty Limited, Timothy Arthur Bosher, Timothy John Ford, Crescent Capital Partners Limited, MDC Development Capital II Pty Limited, TMX Pty Limited, Michael Alscher and Robert Arthur Richard Lee Representation: Plaintiff:- T. Alexis SC, R. HardcastleDefendant:- A. Sullivan QC, D. Robertson, T. Saunders Plaintiffs:- Bill Henry, Turtons LawyersDefendant:- Peter Thompson, Thompson, Eslick Solicitors File Number(s): 2009/00290594 Publication restriction: No

Judgment 1This is the Court's second judgment in these proceedings. The Court gave its principal judgment on 9 July 2013: William McCausland v Surfing Hardware International Holdings Pty Ltd ACN 090 252 752 [2013] NSWSC 902 (the principal judgment). This judgment deals with the form of final orders that the Court should make as a result of the principal judgment together with other ancillary issues. 2In August 2013 the parties exchanged written submissions about the form of orders to give effect to the Court's principal judgment and about the other ancillary issues. The parties then spoke to those submissions over the course of a day on 4 October 2013. 3This second judgment does not repeat or summarise the findings in the principal judgment. This judgment and the principal judgment should be read together. Events, persons and things are referred to in this judgment in the same way as they are in the principal judgment. 4The parties organised their submissions into topics, which they conveniently divided into three groups. These topics are reflected in the structure of this judgment. The topics on which the Court's decision are required are the following: (1) the declarations and orders relating to the transfer of the plaintiffs' shares; (2) what declarations should be made on the moral rights claim; (3) whether damages for breach of the Shareholders Agreement should be awarded against defendants other than SHI Holdings; (4) whether damages for oppression should be awarded and the correct measure of those damages; (5) the orders relating to the Industrial Relations Act, s 106 claim; (6) the form of any other final orders; (7) the challenge to the Court's share valuation of $1.02 per share; (8) what valuation was appropriate in October, November or December 2004; and (9) whether interest should be awarded on any damages order by reason of the plaintiffs' delay in bringing these proceedings. 5The Court will now deal with each of these topic areas in turn. The first of the three groups of topics comprises topics (1) to (6). The second of the three groups of topics comprises topics (7) and (8). The third of the three groups of topics comprises topic (9). 6The parties agreed that once the Court had determined the issues in this judgment that they would then put submissions in relation to costs. The parties may need to file a small amount of supplementary evidence on issues of costs; if for example there have been Calderbank letters or offers of compromise served at any stage in the proceedings. The orders today provide for the filing of evidence and the exchanging of submissions on issues of costs over the course of the next three weeks, following which the court anticipates holding a hearing of no more than two hours in the week commencing Monday, 24 March 2014 to finalise costs issues. Group One Topics - Availability of Declarations and Damages

(1) The Declarations and Orders Relating to the Transfer of the Plaintiffs' Shares 7The plaintiffs seek declaratory relief in relation to the transfer of their shares against: the second defendant SHI Holdings; the sixth defendant, Crescent; the seventh defendant, Macquarie; and the eighth defendant, TMX. The declarations sought are to the effect that these defendants "acted in breach of the Shareholders Agreement and caused the first plaintiff and the second plaintiff to transfer their shares in the second defendant on 2 September 2004". 8The defendants submit that there is no utility or advantage to the plaintiffs in the granting of this declaratory relief against these defendants and that any declaration in relation to any alleged breach of contract should be limited to declaring that "the acquisition of the first and second plaintiffs' shares in the second defendant on 2 September 2004 occurred in breach of the Shareholders Agreement". 9Expressed as it is in the passive voice, the defendants' proposed form of declaration does not identify which defendants acted in breach of the shareholders agreement. This masks the issue considered in topic (3) below: whether relief should be granted against any defendant other than SHI Holdings. That issue will be considered below. But there is still a question whether declaratory relief in the form asked for should be granted. 10The defendants also contest whether any declaratory relief should be granted in relation to findings of oppressive conduct. The extent of relief in relation to oppression is dealt with in topic (4) below. But if other remedies are granted for oppression against any defendant, the defendants' argument that the Court should not grant declaratory relief for oppression mirrors their present argument in respect of declaratory relief for breach of contract. So there is no need separately to consider the issue of declaratory relief for oppression. 11The plaintiffs submit in reply that the proposed declarations relating to the transfer of the plaintiffs' shares reflect the findings of the Court in relation to breach of contract in [614], [618] and [619]. 12The Court dealt with the issue of the breach of clause 12 of the 2002 Shareholders Agreement in a section of the principal judgment headed "Breach of Clause 12", which includes paragraphs [614] to [626]. Of particular relevance to the present controversy are paragraphs [614] to [619]. These paragraphs contain the findings that ground the declaratory relief the Court should grant in relation to the breach of clause 12 of the 2002 Shareholders Agreement. 13Those paragraphs provide as follows "[614] accepted the McCauslands' arguments: (1) that Crescent, an existing shareholder could not make "an offer ... for the Share Capital" within clause 12.1; and (2) that Crescent was not a "bona fide" buyer for the Share Capital. It follows in my view that everything that the board did consequent upon receipt of Crescent's offer was not authorized by clause 12. But of all the sequential steps taken by the board and shareholders under colour of clause 12, only one is said to have resulted in a loss to the McCauslands: the final step on 2 September 2004, of requiring the McCauslands (and one other person who has not brought proceedings) to transfer their shares to the purchaser of shares on behalf of the Crescent consortium, at $0.675 per share. This final step was in my view a breach of the 2002 Shareholders Agreement clause 12. The earlier steps were actions not authorized under clause 12 and in which the defendants or their representatives participated. Many of these actions had no damages consequences in themselves, but were steps in which the defendants participated that led to the final step causing damage to the plaintiffs as these reasons later conclude. [615] The various unauthorized steps between KPMG's receipt of the Crescent offer on 6 August 2004 and the acquisition of the McCauslands' shares on 2 September were as follows: (a) the 9 August 2004 board resolution to put the Crescent offer to shareholders; (b) the 11 August 2004 Offer Notice SHI Holdings sent out to all shareholders; (c) the 23 August 2004 shareholders resolution at a general meeting of shareholders at which 71.35% of shareholders voted to accept the offer contained in the Offer Notice; (d) The 23 August 2004 board resolution to issue a Drag Along Notice to each shareholder; (e) The 24 August 2004 issue and service on shareholders of the Drag Along Notice; (f) The 2 September 2004 'final offers' meeting at which Mr Alscher made a bid on behalf of all existing shareholders except the McCauslands (and Mrs Mary Hodson - a holder of 25,000 shares, or .15% of the Share Capital) at $0.675 per share; and (g) The 2 September 2004 board resolution, after the 'final offers' meeting to accept the Crescent led consortium's bid. [616] To the extent that these steps involved the passing of resolutions at board meetings or general meetings the McCauslands' representatives either voted against (Mrs McCausland on 9 August and Mr Dunstan on 2 September) or abstained (Mr Dunstan) at the board and shareholders meetings on 23 August. [617] The McCauslands' shares were acquired by ACN 110 769 179 Pty Limited, which was incorporated on 1 September, with its registered office at Crescent's offices. [618] Mr Bosher, Mr Lee, Mr Alscher respectively on behalf of TMX, Macquarie and Crescent and Mr Ford each voted in favour of the various board and shareholder resolutions between 6 August and 2 September, in breach of clause 12, which enabled each of the steps to be taken - the issue of the Offer Notice and the Drag Along Notice - that in turn led to the acquisition of the McCauslands' shares. [619] Mr Alscher and Crescent further facilitated the breach by directing BankWest, the consortium's banker, to advance $3,272,128.36 to the consortium vehicle ACN 110 769 170 Pty Limited to pay the McCauslands and Mrs Hodson for their shares." 14Leaving aside the issue to be considered below in (3) as to which defendants other than SHI Holdings are to be found liable for breach of contract, the issue presented for consideration here can be simply stated as against SHI Holdings: should declaratory relief be granted against SHI Holdings in addition to the entry of judgment for the damages to be recovered on the action in contract? 15The defendants submit that if the Court is to award damages for breach of contract against SHI Holdings, there is no utility in granting declarations for "a mere step along the way " towards the award. The defendants took the Court to authorities in support of this submission. In Commonwealth of Australia v BIS Cleanaway Ltd (2007) 214 FLR 271; [2007] NSWSC 1075 ("BIS Cleanaway") Brereton J identified (at [23] to [31]) the principles which govern the Court's exercise of the discretion to grant declaratory relief and the categories of case in which such relief is commonly granted. Parliament plainly intended in Supreme Court Act 1970 s 75 that the Court be able to make declarations without consequential relief and that the jurisdiction to do so is "a large and most useful jurisdiction": BIS Cleanaway at [25], and Commonwealth v Sterling Nicholas Duty Free Pty Limited (1972) 126 CLR 297 at 305 per Barwick CJ. But there are established categories of cases in which the Court will generally decline as a matter of discretion to exercise its undoubted power to make a declaration: BIS Cleanaway at [26]. 16The following established categories, where the Court will decline to exercise the discretion, ground a consistent and principled approach to the exercise of the discretion: BIS Cleanaway at [27] to [30]. The first such category is where the issue is 'purely theoretical": Re Clay; Clay v Booth [1919] 1 Ch 366. The second category is where no good purpose would be served by the granting declaratory relief: Buck v the Attorney-General [1965] Ch 745, Blackburn v the Attorney-General [1971] 1 WLR 1037, and Rivers v Bondi Junction Waverley RSL Club Sub-Branch Ltd (1986) 5 NSWLR 362. And the third such category is that a suit for a declaration should not in substance be the determination of a question anterior to a further suit for substantive relief; the Court must consider its duty in Supreme Court Act 1970 s 63 to resolve all matters in dispute between the parties, so that if a substantive remedy can be sought in addition to a declaration Court should generally insist on that occurring: Neeta (Epping) Pty Limited v Phillips (1974) 131 CLR 286, at 307 and Trans-Realties Pty Limited v Grbac (1975) 1 NSWLR 170. Ward J also discussed these principles in Painaway Australia Pty Limited v JAKL Group Pty Limited and Ors (2011) 249 FLR 1, [2011] NSWSC 205, [379] to [382]: and see Aussie Airlines Pty Limited v Australian Airlines Limited (1996) 68 FCR 406, at 414, per Lockhart J (with whom Spender and Cooper JJ agreed). 17The defendants' arguments are not persuasive on this issue. Their objections to the Court granting declaratory relief do not belong to any of the established categories of case where declaratory relief is commonly declined. The issue of breach of contract is not theoretical. It cannot be said that no good purpose would be served by granting declaratory relief: here, the declaration does have identifiable consequences- an award of damages for breach of contract. And a declaration in this case does not invite a further suit for substantive relief. Rather the defendants say that declaratory relief is superfluous, because damages will be awarded anyway. That is not a reason why a declaration should not be made. On the contrary, the proposed award of damages places this case well outside the categories of case where a declaration is commonly declined. The Court will make a declaration in relation to a breach of the 2002 Shareholders Agreement in the form the plaintiff proposes. 18The Court's reasons in relation to topic (4) below make clear that remedies will be granted for oppression against a number of defendants. The defendants' argument that the Court should not grant declaratory relief for oppression fails for the same reasons as their argument against the Court granting declaratory relief for breach of contract. 19The reasoning here also applies to the other defendants against whom judgment is to be entered for damages for breach of contract. As the Court finds in topic (3) below, judgment will be entered against: (1) the corporate shareholder defendants Crescent (the sixth defendant); (2) Macquarie (the seventh defendant); and (3) TMX (the eighth defendant) who are jointly and severally liable with SHI Holdings for breach of the 2002 Shareholders Agreement. So declarations as to the breach of the 2002 Shareholders Agreement will be made against SHI Holdings and these three other defendants as well as their being liable in damages for breach of contract.

(2) Declarations and Orders in Relation to the Moral Rights Claim 20The defendants' argument against declaratory relief in relation to Mr McCausland's moral rights claim is on stronger ground. Mr McCausland sought two declarations in relation to his claim to be the joint author of the drawing, which had been reproduced in the form of the H-2 fin. He submitted that the two declarations he sought reflected the findings of the Court in the principal judgment. 21The defendants submitted that the appropriate order was there should be judgment for the first defendant, Surfing Hardware, on the moral rights claim. The defendants submitted that it was inappropriate to give any declaratory relief where the reasons in the principal judgment demonstrated that Mr McCausland had failed to establish any infringement of his rights by Surfing Hardware. 22The first declaration Mr McCausland sought in relation to his moral rights claim was a declaration of his joint authorship, as follows: "a declaration that the first plaintiff is a joint author of the drawing of the 'H-2' fin under the Copyright Act 1968 (Cth), being the drawing at schedule 'A' to the reasons for judgment (the Work)'" ("the joint authorship declaration"). 23The second declaration Mr McCausland sought in relation to his moral rights claim was a declaration as to certain drawings and H-2 three dimensional fins being reproductions of the Work, as follows: "a declaration that the production drawing of the "H-2" fin, being the drawing at schedule "B" to the reasons for judgment and the three dimensional "H-2" fin manufactured by the second defendant, are an exact reproduction of the Work" ("the reproduction declaration"). 24The defendants oppose the joint authorship declaration on two grounds: (1) that based on University of New South Wales v Moorhouse (1974) 133 CLR 1 (Moorhouse), Mr McCausland was unable to prove any specific infringement of copyright, therefore making a declaration of right inappropriate; and (2) Mr McCausland did not give notice to Mr Andy Dovell (the other joint author of the Work), so the Court cannot now make a declaration which would affect Mr Dovell's rights. The defendants' opposition to the reproduction declaration is based on ground (2), not on ground (1). 25The Court will make the reproduction declaration. The defendants correctly point out that Mr McCausland was unable to prove any specific infringement of copyright. The defendants took the Court to passages from the decision of the High Court in Moorhouse. In Moorhouse the High Court found that a trial judge's declaration of infringement of copyright was wrongly made and should be set aside. The plurality reached this conclusion on different grounds: McTiernan ACJ and Jacobs J finding that it was founded on breached of copyright that had not been proved; and Gibbs J on the ground that it was based on hypothesis and was objectionable in form. Mr Sullivan QC for the defendants relied on the following passage from the judgment of Gibbs J: "As a general rule, the power to make a declaration will not be exercised when the court is called upon to answer a question that is purely hypothetical: see Re Barnato, decd; Joel v Sanges [1949] Ch 258 at 270; [1949] 1 All ER 515. In accordance with that principle, the Court of Appeal in Odhams Press Ltd v London and Provincial Sporting News Agency (1929) Ltd [1936] Ch 357; [1936] 1 All ER 217, refused to make a declaration that the plaintiffs, who were unable to prove any specific infringement of copyright, were joint owners of the copyright in compilations of starting prices or betting odds made by their representatives. Lord Wright MR said (Ch at 363-4; All ER at 222-3): "As to any further compilations of the same character which may come into existence, it would be most improper for this Court to make any general declaration as to whether they would or would not be the proper subjects of copyright. In order to bring such an issue before the Court there must be specific documents, the character of which can be established, so that the Court can determine whether or not they are the subjects of literary copyright, and appropriate evidence should be given to show that there has been an infringement of that copyright." Many other examples may be found in the books of cases in which a declaration has been refused because it was claimed in relation to circumstances that had not occurred and might never happen. There is no doubt that a declaration may be an appropriate remedy in an action brought by an owner of copyright to assert his rights, but a declaration will as a general rule not be made for that purpose unless it is established either that an actual infringement has occurred or that the defendant intends to take action that will amount to an infringement. " 26But Mr McCausland is not here seeking a declaration of infringement of copyright. The findings in the principal judgment would not entitle him to such a declaration on much the same grounds that led to McTiernan ACJ and Jacobs J declining to make a declaration in Moorhouse: any such declaration would be founded on unproven breaches of copyright. But that does not mean that Mr McCausland cannot seek a more narrowly focussed reproduction declaration, if it is useful. 27There was a very real dispute in these proceedings between these parties as to whether the production drawings of the H-2 fin and the three dimensional H-2 fins in evidence were reproductions of the Work. There was nothing hypothetical about this strongly contested controversy, which took about half a day, to a day, of the Court's time at trial and a significant volume of the parties' final written submissions, as well as the Court's judgment. 28Although the Court will be slow to make declarations based on bare factual findings (Young, Declaratory Orders, 2nd Edition, 1984, pp51-51 [602]) there is utility in making the reproduction declaration, as between Mr McCausland and Surfing Hardware. Apart from deciding the present reproduction controversy, circumstances associated with the future reproduction of the H-2 fin may prompt Mr McCausland to take action against Surfing Hardware to protect his moral rights in the Work. With a product such as the H-2 fin, which may continue be reproduced from the Work in the future, this declaration serves the useful purpose of placing beyond argument the effect of the principal judgment as between these two parties. The Court will make the reproduction declaration. 29The Court will not make the joint authorship declaration. The defendants also take the Moorhouse point against the joint authorship declaration. But the main problem with the joint authorship declaration is its potential effect on the rights of Mr Andy Dovell, the other joint author of the Work. Neither Mr McCausland nor Surfing Hardware called Mr Dovell as a witness at the trial, a matter on which the Court commented in the principal judgment. It was not clear that either party had given notice of these proceedings to Mr Dovell. Certainly, neither side sought to join Mr Dovell as a party to the proceedings. 30In the absence of such notice the Court cannot now make a declaration, which would in effect hold out to the world that Mr Dovell was the joint author of the Work with Mr McCausland. To make such a declaration would be inconsistent with fundamental principle that an order which directly affects a third person's rights or liabilities should not be made unless the person is also joined as a party: cf News Limited v Australian Rugby League (1996) 64 FCR 410, at 523 - 526 (Federal Court of Australia, Full Court) and Pegang Mining Co Limited v Choong Sam [1969] 2 MLJ 52 (Privy Council). 31Mr Dovell may wish to dispute that he is a joint author of the Work with Mr McCausland on any number of grounds. He should not be denied that opportunity by the making of this declaration. 32The defendants argued that there should be judgment for the first defendant, Surfing Hardware, on the moral rights claim as pleaded in paragraphs 157 to 162 of the Amended Statement of Claim. But as the Court will make the reproduction declaration, no judgment will be entered for Surfing Hardware on this claim.

(3) Whether damages may be awarded against any defendants other than SHI Holdings 33The defendants submit that the Court's findings do not justify an order for damages for breach of contract beyond an award of damages payable by SHI Holdings. 34The defendants submit that the plaintiffs have not sought relief against the individual non-corporate defendants, Mr Bosher, Mr Ford, Mr Alscher and Mr Lee. The defendants agree that such relief should not be appropriate. But in any event the plaintiffs do not press for relief against these individuals. Thus the remaining contest about damages for breach of contract is whether damages can be ordered against the corporate defendants other than SHI Holdings, namely: Crescent, Macquarie and TMX. 35The plaintiffs' position on this question may be simply stated. Based on paragraph [618] and [699] of the principal judgment, the plaintiffs say that judgment should be entered against the corporate shareholder defendants on the basis that Crescent, Macquarie and TMX are jointly and severally liable with SHI Holdings for breach of the Shareholders Agreement. Paragraph [618] of the principal judgement has been extracted above. Paragraph [699] is as follows: "[699] Arising out of the breach of clauses 11 and 12 of the 2002 Shareholders Agreement, what exactly are the acts in the conduct of SHI Holdings affairs (Corporations Act s 232(a)) or the acts on omissions of the company (s 232(b)) or the resolutions (s 232(c)) that are oppressive to, unfairly prejudicial to, or unfairly discriminatory against (s 232(e)) the McCauslands? The several acts and omissions start on 6 August 2004 and are all acts predicated upon the Crescent offer of that date activating clause 12. The acts were the following: (1) the actions of the representatives of the non-McCausland shareholders at the 9 August 2004 board meeting to act on the 6 August Crescent letter, resolving to set a timetable of proposed steps for the execution of the clause 12 sale process over the following month; (2) the preparation and dispatch by the company of the Offer Notice on 11 August; (3) the actions of the non-McCausland shareholders voting at the general meeting of shareholders on 23 August in favour of accepting the Crescent 6 August offer; (4) the actions of the representatives of the non-McCausland shareholders in voting on 23 August 2004 to issue Drag Along Notices under clause 12.2 on 24 August 2004; (5) the acceptance by the company of the Crescent consortium bid of 24 August as part of the clause 12 process; (6) the representatives of the non-McCausland parties voting at the 2 September board meeting to accept the Crescent consortium final cash bid of $0.675 per share; and, (7) the representatives of the non-McCausland parties taking steps to complete, and require the McCauslands to complete, the clause 12 Crescent consortium purchase of the McCauslands' shares on 2 September 2004." 36In response, the defendants refer to the principal judgment paragraphs [614], [615] and [618] (see above) and do not accept that the reasoning the principal judgment justifies any liability on the part of the shareholder defendants. The defendants argue: (1) that the majority of the steps taken which were not authorised by clause 12 were taken by the company SHI Holdings through the organ its board and not by representatives of any particular shareholder; (2) that all these steps were consequent upon the decision by the company itself through the board resolution of 9 August 2004 to put the Crescent offer to the shareholders as an offer under clause 12; (3) the shareholders of SHI Holdings relevantly voted on only one occasion, being the meeting of 23 August 2004, to accept the offer contained in the offer notice issued under clause 12 and it is difficult to conceive how an offer notice sent out by the company could be in breach of the shareholders agreement or causative of loss; and finally, (4) that consistently with this reasoning, the principal judgment (at [614]) concludes that it was only the final step represented by the board resolution of 2 September 2004 that was in breach of the shareholders agreement and which caused damage to the plaintiffs a step it was submitted is that of SHI Holdings, and not of Crescent, Macquarie TMX or any other shareholder. 37Though this submission was persuasively advanced with Mr Sullivan QC's usual eloquence, Mr Alexis SC answered it effectively. There are two main answers. 38First, the argument gives insufficient weight to what the Court has already found in the principal judgment and to which it must now give effect. Far from isolating SHI Holdings' liability for breach of contract from that of the other defendants, the principal judgment emphasized the interdependent nature of all that conduct: cf the last sentence in [614], and the whole of [618]. 39Secondly, although the final step on 2 September 2004, as [614] explains, was the breach of contract causing the loss, that step could not have been taken without all the other steps in which the other defendants participated, and so in that way they too enabled by their conduct the taking of that final step. 40And there is no obstacle to this conclusion in the pleadings. The Amended Statement of Claim claims relief at general law by way of "damages" (prayer from relief 12). The claim is not restricted to any particular defendant and in my view is available against the corporate defendants other than SHI Holdings.

(4) Whether Damages for Oppression Should be Awarded and their Correct Measure 41The defendants submit: (1) that no finding has been made to ground an entitlement to an award of damages for the oppressive conduct which the Court has found; and (2) damages is not an available form of relief for oppressive conduct. 42First the defendants submit that no finding has been made grounding an entitlement to an award of damages for the oppressive conduct found. The defendants look to paragraph [699] of the principal judgment and submit that the conduct identified as oppressive is predicated upon the Court's finding that the 2002 Shareholders Agreement was breached by virtue of the Board's erroneous conclusion that the present offer activated clause 12. And the defendants further submit that the Court has not made any finding as to why an award for damages for oppression would be appropriate in circumstances where it has made a finding that there should be an order for damages for breach of contract. 43The answer to this submission is straightforward. As Mr Alexis SC submits, the principal judgment (at [1012]) decides that both the plaintiffs' contract and oppression claims have succeeded and then proceeds to assess damages. The principal judgment does this without drawing any distinction between the damages to be awarded for the contractual breach and damages to be awarded for oppression. The principal judgment in [698], makes clear that the Court's findings of breach of contract are also a badge of the defendants' commercial unfairness in their dealings with the McCauslands, thereby constituting the oppressive conduct of the affairs of SHI Holdings. Paragraph [698] provides as follows; and particular attention is drawn to the passage beginning with the words "these findings" down to "grounds for relief under Corporations Act, s 233": "[698] The Court has found that the defendants' requirement that the McCauslands sell their shares for $0.67 per share to the Crescent consortium was a breach of clause 12 and clause 11 of the 2002 Shareholders Agreement. The Court also finds in the "Damages" section of these reasons below that as a result of the defendants' requirement under colour of clause 12, the McCauslands' shares were sold in September 2004 at less than their market value of $1.02 per share. These findings of breach of contract are also a badge of the defendants' commercial unfairness in their dealings with the McCauslands. A majority of the shareholders in SHI Holdings were prepared to act in contravention of their contractual obligations to require the sale of the McCauslands' shares at an undervalue. This was the conduct of the company's affairs and involved several resolutions by members: that were oppressive to, unfairly prejudicial to, or an unfairly discriminatory against the McCauslands, then minority shareholders in SHI Holdings within Corporations Act s 232(e) and is grounds for relief under Corporations Act s 233. Moreover, the breaches of contract, which involved overbearing the McCauslands' minority wishes, were not saved from characterisation as oppressive by the company's legal advice. But the conduct complained of was not obviously contrary to the interests of members as a whole within s 232(d)." 44The defendants' next submission is that Corporations Act, s 233 cannot be relied upon to impose a burden on a shareholder to pay compensation for loss sustained through misapplication of a process laid down in agreement. The defendants submit that of the orders referred to in Corporations Act, s 233, only s 233(1)(j) could potentially be applicable here and such an order is analogous to a mandatory injunction and such an injunction is not normally given when damages would be an adequate remedy. Moreover, the defendants submit that there was no continuing oppression against the plaintiffs because the oppression rested in the previous inappropriate application of the procedure for the compulsory acquisition of shares. The defendants conclude this submission by saying that the plaintiffs' detriment would be salved by their obtaining relief through an order for damages for breach of contract against the company. 45There are several answers to the defendants' submissions, which I do not find persuasive on this point. First, the Court may under s 233 make "any order under this section that it considers appropriate" and the Court has a wide discretion as to the appropriate remedy: Smith Martis Cork & Rajan Pty Ltd v Benjamin Corp Pty Ltd [2004] FCAFC 153 at [70] and United Rural Enterprises Pty Ltd v Lopmand Pty Ltd (2003) 47 ACSR 514 at [34] per Campbell J. 46Secondly, merely because the principal act of oppression is also a breach of contract does not mean that the plaintiffs should be confined to their remedies in contract. And the remedy of compensation fits well within Corporations Act, s 233(1)(j). Here, the Court is requiring the defendants to do a "specified act", namely to pay proper compensation for the transfer of the plaintiffs' shares. 47Thirdly, the contention that there is no "continuing oppression" against the plaintiffs is not persuasive. It is beside the point to emphasise, as the defendants do, that the oppression rested upon the previous inappropriate application of a procedure for the compulsory acquisition of shares. The effects of that inappropriate application of the procedure still lie with the plaintiffs who have not received fair value for their shares. 48Fourthly, there is no reason why the oppression remedy should not be granted against all those who participated in the present conduct including Crescent, Macquarie and TMX. The defendants conceded that the Court could get relief against persons who participated if the Court had "made findings to the effect that the participation of the shareholders were the relevant oppressive acts". But the defendants' contention is that the findings (at [699] and [695]) should be properly characterised as conduct by the company rather than conduct of their shareholders and therefore there is no proper basis for the grant of relief against these other shareholders. But in my view a proper reading of not only the Court's findings at [694], [698] and [699], but the Court's detailed findings about the conduct of the other shareholders and their representatives earlier in the principal judgment provide ample ground for the grant of relief under Corporations Act, s 233. 49The defendants submit that if an award of damages for oppression, the relevant time for assessment of whether conduct is oppressive is the commencement of the proceedings: Re Tivoli Freeholds Ltd (1972) VR 445, at 453. The defendants submit that as the plaintiffs claim for oppression was first filed on the commencement of the Federal Court proceedings in September 2009 that the effect of the oppressive conduct is to be measured as at that date, which is reflected in Mr McGuinness' valuation as at 30 April 2009, which shows that the shares at that time were worth less than the 67.5 cents that the plaintiffs were paid. 50Alternatively, the defendants submit that the measure of damages for oppression should be the contractual measure. 51The plaintiffs dispute these contentions and submit that damages for oppression should be measured as at September 2004. 52In my view, as the Court's findings are that the conduct which constitutes the oppression is the same as the conduct constituting a breach of contract; in my view it would be artificial to attempt to assess damages for oppression at any other date than that for the contractual breach, namely 2 September 2004. And the defendants' submission accepting the alternative, that the measure of damages would be the contractual measure, especially as the Court has found that the contract and oppression cases share the same sub-stratum: principal judgment at [1056].

(5) Orders Relating to the Industrial Relations Act, s 106 Claim 53Mr McCausland, the first plaintiff, seeks an order declaring his contract of employment with the first defendant was unfair by not providing for six months' notice of termination or payment of six months' salary in lieu of notice, and a variation of the contract of employment in those terms. The defendants oppose the making of any declaration to this effect, but for reasons similar to those set out above in relation to the breach of contract and oppression claims, in my view a declaration is appropriate especially as it is accompanied here by consequential relief. 54In addition the plaintiffs seek an order for the sum of $63,333.33, together with interest from the date of termination on 28 August 2003 to the date of these orders. The issue of interest is dealt with in relation to the Group 3 topics below. 55The defendants submit that the amount of compensation in lieu of notice in the additional period of notice is five months salary at $150,000 per annum, at no more than $12,500 per month, amounting to $62,500. In the end the parties responsibly did not want to argue further about the matter. I prefer the defendants' calculation of $62,500 as the loss figure for which judgment will be entered on this head of claim. 56The Court has granted Industrial Relations Act, s 106 relief to Mr McCausland. No relief was granted to Mrs McCausland. The Court found (principal judgment at [836]) that it was not necessary to decide Mrs McCausland's claims. It is appropriate therefore to enter judgment in the defendants' favour in relation to Mrs McCausland's claim. The only relief on the s 106 claims in Mr McCausland's favour is against the first defendant. 57The parties are at issue as to the consequence of any amendment to the pleadings to allow Mr McCausland to recover the sum of $43,033 for his success fee in contract. This issue was considered in the principal judgment, at [810] to [828]. The Court concluded in [828] that as the success fee issue had been fully argued and the dispute was really about the construction of the 13 December Memorandum, it was fair to allow Mr McCausland to amend his pleadings to recover the $43,033 in contract, even at that late stage. 58It is an unusual order to allow parties to amend pleadings between the Court's giving reasons and the entry of final orders but the Court has permitted it in this case for the reasons given. 59But the defendants now submit that leave should only be granted to amend on the basis that Mr McCausland be deprived of his costs on this issue and any interest on the sum of $43,033. The defendants point to the well known principle that where a plaintiff has made a late amendment to its pleadings to include a claim for damages which had not been previously claimed and which was the only basis on which the plaintiff was entitled to succeed, the defendant is entitled to the costs of the action down to the date of the amendment: Beoco Ltd v Alfa Laval Co Ltd [1995] QB 137 at 154 and Murrihy v Radio 2UE Sydney Pty Ltd [2000] NSWSC 318 at [8] and [9], and Ciaglia v Ciaglia [2010] NSWSC 723 at [9] and [10]. 60The plaintiffs submit that it should not be a requirement of leave that these terms be imposed, because questions of interest and costs are separate and are not relevant to whether leave ought to be granted. I accept the plaintiffs' argument that these terms should not be imposed on the grant of leave, and I will grant leave to amend. However, it is convenient to decide separately from all other costs and interest issues, the costs and interests consequences of this amendment. 61Mr McCausland only succeeded on a small part of his Industrial Relations Act, s 106 claim of which this claim (in relation to the success fee) was about 40 per cent. The framing of this claim under Industrial Relations Act, s 106 rather than in contract has occasioned unnecessary cost and expense to the defendants. Mr McCausland's management of this aspect of the claim does demonstrate an unreasonable failure on his part to bring and prosecute this claim in the proper manner against the defendants: Kalls Enterprises Pty Ltd (in liq) v Baloglow (No 3) [2007] NSWCA 298 at [12] ("Balogow"). 62There is certainly an arguable basis both to adjust any award of interest that might otherwise be payable on this sum to Mr McCausland and for some part of the defendants' costs on the issue to be paid by Mr McCausland. In my view, and balancing these factors, the appropriate course for the Court to take is to order that each party bear its or his own costs of the issue of the success fee and that Mr McCausland be deprived of any interest on the success fee. This may also have the advantage of simplifying the cost assessment process at a later time.

(6) The Form of Other Final Orders 63The defendants submit that to the extent that any defendant is not the subject of adverse orders in these proceedings there should be judgment in favour of that defendant and that the Amended Statement of Claim should be otherwise dismissed. The plaintiffs dispute that the orders should be structured in this way. 64The Court will make both these orders. If the Court has not granted relief against a particular defendant the proceedings still have to be determined against that defendant. Defendants in that position have achieved a measure of success and there should be a judgment in their favour, as the defendants submit. 65The defendants also sought particular orders with respect the Industrial Relations Act s 106 claims consequential on the Court's findings. But these have already been dealt with above. 66But it is a question for further submissions on the issue of costs whether defendants with a judgment in their favour will also receive an order for costs in their favour. The exercise of the Court's discretion on this issue may well depend on the degree to which the costs of these defendants and the issues which related to them are separable from all other issues in the proceedings. Group Two Topics - Amendments to Principal Judgment

(7) The Challenge to the Court's Share Valuation of $1.02 per share 67The Court found that as at 2 September 2004 that Mr and Mrs McCausland's shares in SHI Holdings should be valued at $1.02 per share. The defendant challenges aspects of the methodology and the judgments that the Court used to reach this conclusion and asks the Court to reach a different figure. It is not necessary to re-iterate the terms of this challenge because in my view it is not available now. The plaintiffs submit that this is not an issue that can now be re-opened in a supplementary hearing in relation to relief. I agree with the plaintiffs' submission. The Court cannot now reach a different valuation from that reached in the principal judgment. Any alleged error in the principal judgment on this issue can only be dealt with on appeal.

(8) What valuation was appropriate in October, November or December 2004 68The defendants say that the $1.02 value as at 2 September 2004 for the plaintiffs' shares determined by the Court was dependent upon prospective future maintainable EBIT for SHI Holdings of $3.34 million. The defendants submit that depending on the date of valuation in the second quarter of the 2005 financial year any prospective purchaser would not have assessed the value of the company on the basis of prospective future maintainable EBIT of $3.34 million. 69The plaintiffs say that this issue is no longer able to be re-litigated, as the Court has already made detailed findings on it. In the alternative, the plaintiffs say that the Court's valuation is correct. I agree with the plaintiffs' submissions that this issue, and all the defendants' related arguments are not matters that can be revisited in a supplementary judgment such as this upon the entry of the Court's orders. If arguable, they can only be dealt with on appeal. Group Three - Interest and Delay issues

(9) Should Interest be Awarded by Reason of the Plaintiff's Delay 70The plaintiffs seek interest under Civil Procedure Act 2005, s 100 from 2 September 2004 up to the date of the making of the Court's orders today, 3 March 2014 at the pre-judgment rates of interest provided for in the Table following Uniform Civil Procedure Rules ("UCPR"), r 36.7. 71The defendants submitted the Court should exercise its discretion not to award interest up to judgment on the judgment sums, or to limit the order of any such interest. The defendants submitted this case took seven years to bring to hearing, with causes of action arising in September 2004 in a case not being set down for hearing until October 2011. The plaintiffs contended that there should be no discounting of interest to which they would be otherwise entitled to under Civil Procedure Act 2005, s 100. 72This issue requires more examination of applicable legal principle and the procedural history of this matter. 73The parties were not at issue about the Court's exercise of discretion to include interest in the amount to which judgment was given under Civil Procedure Act, s 100. An award of interest should not be refused merely to punish delay: Bennett v Jones (1977) 2 NSWLR 355 ("Bennett") and Big Kahuna Holdings Pty Ltd v Kitas (No. 2) [2012] NSWSC 858 ("Kitas") at [23]. And delay is not ordinarily a reason for refusal or reducing the inclusion of interest in a judgment: Baloglow at [9]. The Courts recognise that a defendant has had he use of money and the plaintiff has been out of its use and should be compensated accordingly: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 663. Before a Court makes a discretionary adjustment to an award of interest a defendant must demonstrate an unreasonable failure on the part of the plaintiff to bring and prosecute the claim against the defendants: Baloglow at [12]. For a Court to make a discretionary adjustment to interest on the basis of delay (to the rate of interest or the date from which it is calculated), a defendant must ordinarily show injustice or some sort of long term disadvantage: Baloglow at [11]. 74The parties' first contest on interest was whether the plaintiffs were guilty of unreasonable delay warranting a discretionary adjustment to an award of interest under s 100. The Court has been much assisted in this assessment by the parties' "Combined Proceedings Chronology". That chronology is not set out in detail in these reasons although parts of it are important for present consideration. The chronology will also assume importance when the Court has to deal with issues of costs. 75The picture the chronology presents may be shortly summarised. The McCauslands obtained advice from Mr Walker SC in August 2004 on the construction of clause 12 of the Shareholders Agreement. As the principal reasons for judgment show, the Court has substantially agreed with Mr Walker SC's construction of the 2002 Shareholders Agreement. Mr Walker SC's advice provided a reasoned basis for the commencement of proceedings in this Court for breach of contract and for oppression. But instead in August 2004 Mr McCausland filed a Summons for relief in the New South Wales Industrial Relations Commission ("IRC") in relation to Mr McCausland's employment agreement. These IRC proceedings were expanded in September 2005 when Mr and Mrs McCausland initiated proceedings in the IRC alleging that the 2002 Shareholders Agreement was an unfair contract. 76Then between September 2005 and June 2009 the IRC proceedings were prepared for hearing accompanied by many interlocutory skirmishes. The IRC proceedings were adjourned for a period of a little over 3 months for a "respite period", between December 2007 and March 2008, to assist the management of Mr McCausland's depression, and SH International commenced proceedings in January 2008 in the Federal Court against Mr McCausland. In February 2008 SHI Holdings sought to remove the IRC proceedings to the Supreme Court. In October 2008 the Federal Court proceedings were dismissed. 77In the first half of 2009 the plaintiffs filed affidavits in preparation of hearing of the IRC proceedings in June 2009. When that hearing was listed the McCauslands sought an adjournment to enable the proceedings to be commenced in the Federal Court with a view to removing the IRC proceedings ultimately into the Supreme Court. In September 2009 the McCauslands filed their Summons in the Supreme Court and an application that the IRC proceedings to be transferred to the Supreme Court. In November 2009 Rein J, sitting in this Division transferred the IRC proceedings into this Court. In December 2009 Rares J in the Federal Court cross-vested the Federal Court proceedings, commenced by the McCauslands, into the Supreme Court. In 2010 and 2011 the proceedings were closely case managed by the Registrar in Equity and then listed before me for hearing in October 2011. The complexity of the matters in issue at the hearing can be gauged from the Court's principal judgment. This is only an overview of the detail of the procedural history, but is enough for present purposes. 78In light of this chronology the defendants put a series of submissions that the Court would not order, or would limit, interest on the judgment sums up to judgment. I do not find the defendants' argument persuasive. 79The defendants say that the plaintiffs did not act in a timely way on Mr Walker SC's August 2004 advice. It is true that no claim for breach of contract was brought until 2009, but in my view the plaintiffs are not to be deprived of interest because they took the strategic course of committing more and more resources to the IRC. The jurisdictional difficulties of blending together a contract claim and existing proceedings in the IRC were not to be simply overcome. And that the plaintiffs desired to go down the path they had already started in my view was not unreasonable. They ultimately backtracked just before the June 2009 IRC hearing, but this does not demonstrate in my view an unreasonable failure to bring or prosecute their contract claim. 80Mr McCauslands' depression is a significant factor in the earlier period. The plaintiffs did bring IRC proceedings challenging the 2002 Shareholders Agreement by September 2005. But Mr McCausland was not then free of depression. The IRC considered it appropriate to grant a 3 month adjournment in late 2007, early 2008 to assist his medical condition. And the principal judgment makes some observations about the effect of all of this litigation on Mr McCausland, which was still evident at the time of trial in October 2011: principal judgment at [22]. A degree of slowness in changing procedural course is not unreasonable from someone in Mr McCausland's circumstances, and especially in proceedings as relatively complex as these. 81The IRC proceedings were not without merit and utility. Mr McCausland has succeeded in an amount of a little over $100,000 in the IRC proceedings. Although that is less than 10 per cent of his total claim, the case he presented in the Supreme Court utilised the affidavit evidence which had been prepared for the IRC, so the preparation time and resources for the IRC hearing in June 2009 was not wasted and was re-deployed in aid of the oppression and contract cases as well. 82The defendants complain the IRC proceedings moved at a "snail's pace". This is a considerable oversimplification. A better characterisation of what occurred in the IRC is a form of litigious trench warfare. And the defendants were initiating their own counter actions in the Federal Court, adding to the overall pressure. The years 2006, 2007, 2008 are full of procedural applications and counter applications for which in my view the plaintiffs do not bear any especially responsibility than the defendants. In fact one of the notable features of this period is the lack of close case management of the proceedings, equivalent to that which was instituted by the Registrar in Equity in 2010 and 2011 in this Court, which finally brought the matter on for hearing. 83The defendants consented to transfer the proceedings from the IRC to the Supreme Court. Indeed when the transfer took place the Court decided to grant it "primarily on the basis that it was supported by the respondents": William McCausland and Another v Surfing Hardware International Holdings Pty Limited and Others [2009] NSWIRComm 187 at [5]. 84The defendants' alternative argument is that it would be unjust to the defendants to award the plaintiffs interest at the Supreme Court rates because those rates are higher than the rates of interest that could have been obtained for retail and commercial deposits of funds. The defendants rely upon affidavit evidence of deposit rates which includes calculations as to interest at Supreme Court rates and interest at deposit rates. There is no issue about the accuracy of the calculations which show that Supreme Court rate of interest is a significantly higher interest burden than deposit rate of interest. 85In my view, whether the matter is looked at either before or after the introduction of the new Supreme Court interest rate practice note, Practice Note SC Gen 16 in June 2010, the just approach is for the Court to use the rate set out in the Schedule to UCPR, r 36.7 as the appropriate measure of what is a just interest rate. The reason for this is fully explained in cases such as Baloglow at [21] and Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2010] NSWSC 1106 per Barrett J, at [23]. 86And finally, SHI Holdings argues that it would not have been in a position to borrow the funds to pay the interest had it been ordered at an earlier time. But in light of the Court's findings about the joint and several liability of the defendants this argument is not persuasive.

Conclusions and Orders 87For the reasons set out above the Court will make the following orders and directions. I understand from the course of argument that in light of my findings here there should be no issue about the quantum of the judgments to be entered here. But if that is wrong, the Court has granted liberty to apply. And precise interest figures still have to be calculated up to today by the parties.

Declarations and Orders Relating to the Transfer of the Plaintiffs Shares 88A declaration that the second defendant, the sixth defendant, the seventh defendant and the eighth defendant acted in breach of the shareholders agreement and caused the first plaintiff and the second plaintiff to transfer their shares in the second defendants on 2 September 2004. 89A declaration that the second defendant, the sixth defendant, the seventh defendant and the eighth defendant engaged in oppressive conduct within the meaning of s 232 of the Corporations Act and caused the first plaintiff and the second plaintiff to transfer their shares in the second defendant on 2 September 2004. 90An order for judgment in favour of the first plaintiff against second defendant, the sixth defendant, the seventh defendant and eighth defendant in the sum of $1,138,838.45 together with interest thereon pursuant to section 100 of the Civil Procedure Act 2005 (NSW) from 2 September 2004 to the date of the making of the order. 91An order for judgment in favour of the second plaintiff against the second defendant, the sixth defendant, the seventh defendant and the eighth defendant in the sum of $512,691.05 together with interest thereon pursuant to section 100 of the Civil Procedure Act from 2 September 2004 to the date of the making of the order.

Orders relating to the Section 106 Claim 92An order declaring that the first plaintiff's contract of employment with the first defendant was unfair within the meaning of s 106 of the Industrial Relations Act 1996 (NSW) by not providing for the employer to give the employee six (6) months notice of termination of employment or payment of six (6) months salary in lieu of notice. 93An order varying the first plaintiff's contract of employment with the first defendant to include a term that the employer shall provide the employee with six (6) months notice of termination of employment or payment of six (6) months salary in lieu of notice. 94An order for judgment in favour of the first plaintiff against the first defendant in the sum of $62,500 together with interest thereon pursuant to section 100 of the Civil Procedure Act from 28 August 2003 to the date of the making of the order.

Orders Relating to the Success Fee 95An order that the first plaintiff have leave pursuant to s 65 of the Civil Procedure Act to further amend the Amended Statement of Claim to claim inter alia that pursuant to the First Plaintiff's contract of employment with the first defendant, the second defendant is liable to the first plaintiff in the sum of $43,033 ("the employment contract amendment"). 96An order for judgment in favour of the first plaintiff against the second defendant in the sum of $43,033. 97Order the first plaintiff pay the costs of any defendant thrown away by virtue of the employment contract amendment being made. 98Order the first plaintiff and the defendants to bear their own costs of the employment contract amendment. 99Judgment for the first to fifth defendants on the second plaintiff's claim pursuant to s 106 of the Industrial Relations Act pleaded in paragraph 167 of the Amended Statement of Claim. 100Judgment for the second to fifth defendants on the first plaintiff's claim pursuant to s 106 of the Industrial Relations Act pleaded in paragraph 163-166 of the Amended Statement of Claim.

Declaration Relating to Moral Rights 101A declaration that the production drawing of the "H-2" fin, being the drawing at schedule "B" to the reasons for judgment and the three dimensional "H-2" fin manufactured by the second defendant, are an exact reproduction of the Work.

Other Orders 102Judgment will be entered for those Defendants not the subject of any adverse order, namely the fourth defendant Timothy Bosher, the fifth defendant Timothy Ford, the ninth defendant, Michael Alscher and the tenth defendant Robert Lee. 103The Amended Statement of Claim shall be otherwise dismissed. 104The question of costs, including the costs of all argument relating to the form of final orders and other issues considered in the Court's reasons today, are reserved and will be listed for further argument. 105Direct the plaintiffs to file and serve any further evidence and submissions on the question of the costs of these proceedings by 4.00pm on Monday 10 March 2014. 106Direct the defendants to file and serve any further evidence and submissions on the question of costs by 4.00pm on Monday 17 March 2014. 107Direct the plaintiffs to file and serve any evidence and submissions in reply on the question of costs by 4.00pm on Friday 21 March 2014. 108Direct the parties to communicate with my Associate in the next two days with a view to listing the proceedings for final argument as to costs for two hours in the week commencing 24 March 2014, noting that the Court presently has 10.00.am on Monday 24 and Thursday 27 March available to list the matter. 109Grant liberty to apply.

Amendments 04 March 2014 - Only orders and directions contained in paragraphs [104] to [109] have been made. Amended paragraphs: paragraph 87 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 March 2014

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Judgment (18 paragraphs)

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Cases Cited (22)